04-2283 MARCOS V. HAECKER

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State: Florida

Court: Florida Third District Court

Docket No: 04-2283 MARCOS V. HAECKER

Case Date: 11/23/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005

ALINA MARCOS, Appellant, vs. STEPHEN ANDREW HAECKER, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 01-34065 CASE NO. 3D04-2283

Opinion filed November 23, 2005. An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Judge. Jesse C. Jones, for appellant. Philip D. Parrish; Lawrence S. Katz, for appellee.

Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ. SHEPHERD, J. Alina Marcos appeals the trial court's final order

dismissing her petition to determine paternity and for related relief brought against Stephen Andrew Haecker. The narrow

question presented is whether a defendant who couples a motion to dismiss on grounds of forum non conveniens, see Fla. R. Civ. P. 1.061, with a motion to quash service of process pursuant to Florida Rule of Civil Procedure 1.140 thereby waives the latter. We find that a simultaneously filed motion to dismiss on the grounds of forum non conveniens does not waive such rights as may exist on a motion to quash. judgment below. FACTS Marcos Haecker is is a a U.S. nonresident citizen who alien and in citizen Mexico of Spain. In Accordingly, we affirm the

resides

City.

October 1995, the parties briefly crossed paths in Miami Beach, Florida, after which Marcos learned that she was pregnant. In

December 2001, Marcos filed her paternity action in Miami-Dade County Circuit Court. For the next two and a half years, Marcos As is his right,

sought to serve process on the absent Haecker.

Haecker did not respond to Marcos' counsel's entreaty to accept service of process by mail. See Fla. R. Civ. P. 1.070. He also

contested Marcos' efforts to consummate service on him through the only other means at her disposal, the Inter-American

Convention on Letters Rogatory (Jan. 30, 1975, S Treaty Doc. No. 27, 98th Cong, 2d Sess (1984))(the Convention). From the summer of 2002, when the lower court authorized the Convention's use, through the fall of 2003, Marcos sought to

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serve

Haecker

through

Process

Forwarding

International,

a

private contractor for the United States Department of State. According to Marcos, Process Forwarding was never able to obtain a return of service from the "Central Authority in Mexico," the apparent foreign serving entity. Nevertheless, on September 25,

2003, Haecker, through Florida counsel, filed in the circuit court a sworn motion to quash service of process, in which he averred under oath that the letters were not personally served on him, but rather served on "someone [else] at his place of employment in Mexico City." See Anthony v. Gary J. Rotella &

Assocs., P.A., 906 So. 2d 1205 (Fla. 4th DCA 2005)(attempted service upon a nonresident by serving coworker insufficient to satisfy Florida statutory requirements for personal service); Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977)(accord); Parish Mortgage Corp. v. Davis, 251 So. 2d 342 (Fla. 3d DCA 1971)(holding that a defendant who has not been served,

especially where failure of service appears on record, is not obligated to defend cause until service is made). Because

Marcos has not secured the cooperation of the Mexican officials through the United States contract server, she has been unable to contradict Haecker's assertion. In March 2004, after the trial court afforded Marcos two additional extensions of time within which to obtain a return of service from Mexico, Haecker renewed his motion to quash. In a

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lengthy order, the trial court afforded Marcos an additional nearly service. ninety days, until July of 1, that 2004, to effect Haecker proper again

Upon

expiration

deadline,

renewed his motion to dismiss, but this time additionally sought dismissal on the ground of forum non conveniens pursuant to Florida Rule of Civil Procedure 1.061. The court held a hearing on Haecker's renewed motion and dismissed the action. Marcos admitted she still could not prove However, conveniens

valid service to overcome Haecker's verified motion. Marcos argued that by joining the new forum non

ground in his motion, Haecker waived his service of process defense by seeking affirmative relief. The court rejected this

argument, stating, "Respondent has always contested jurisdiction and has never appeared before the court seeking any affirmative relief." We agree and affirm the dismissal. DISCUSSION Marcos' argument is not insubstantial. We often have held

that if a party takes it upon himself to seek true affirmative relief before moving to dismiss on the basis of lack of personal jurisdiction, the defense of lack of personal jurisdiction

argument is waived.

See, e.g., Golden State Indus. Inc. v. Likewise, failure to

Cueto, 883 So. 2d 817 (Fla. 3d DCA 2004).

challenge personal jurisdiction at the earliest opportunity can be deemed a waiver. See Rojas v. Rojas, 723 So. 2d 318 (Fla. 3d

4

DCA 1998). choice." 1

Here, however, Haecker was faced with a "Hobson's Because Florida Rule of Civil Procedure 1.061 requires

that a motion to dismiss on forum non conveniens grounds "be served not later than 60 days after service of process," Haecker was at risk if he did not timely file. Although not brought to

our attention by either party, we recently held in Wedge Hotel Management, (Bahamas), Ltd. v. Meier, 868 So. 2d 552 (Fla. 3d DCA 2004), to that dismiss "a defendant forum should non file [his] alternative

motion

for

conveniens

contemporaneously

with the filing of a motion to quash service of process" or, at a minimum, not later than sixty days from the date of service contested in the motion to quash. Indeed, applying this rule,

Haecker's alternative forum non conveniens motion may be untimely. However, unlike many situations where the defending party is not under such constraints, see e.g., De Ardila v. Chase Manhattan Mortgage Corp., 826 So. 2d 419 (Fla. 3d DCA 2002)(insufficiency of service of process waived by mortgagor by her conduct in filing subsequent pleadings); MacDougall v. Kutina, 798 So. 2d 30 (Fla. 4th DCA 2001)(holding that former husband waived any defects in service of process by appearing at first contempt proceeding), we find that the filing of a motion to dismiss for

1

See Anderson v. Highlands Beach Develop. Corp., 447 So. 2d 1045, 1046 (Fla. 4th DCA 1984)(defining Hobson's choice as "an apparent freedom of choice with no real alternative"). 5

forum non conveniens while a motion to quash service of process is pending does not constitute a waiver of the latter. Affirmed.

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